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Texas Supreme Court Urged to Reconsider First Amendment Blog Case

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In a case watched by journalists and legal bloggers all over the United States, the Supreme Court of Texas has been petitioned by a union to reconsider its decision not to hear a case involving the free press rights of a blog site.

An amicus curiae, or “friend of the court,” brief asking for appellate review had been filed on behalf of online bloggers connected with the SCOTUSblog, the Supreme Court of Texas Blog, How Appealing, Instapundit, and Power Line.

SCOTUSblog is an award-winning legal blog providing thorough coverage of the United States Supreme Court. The Supreme Court of Texas Blog is a well-respected legal blog that provides comprehensive coverage of cases that are filed with the Supreme Court of Texas. These blogs, like the other blogs, have writers who spend the majority of their professional time practicing or teaching law or engaging in other professional activities.

These Amici lawyers had asked the Court to interpret “media” to include those who publish ongoing, recurring publications, and online publications. They had asked the Court not to limit the term to those in the “primary business” of publication, and asked that the definition cover opinion as well as fact.

The Amici lawyers argued that limiting the test to a “primary business” one, would exclude other advocacy and religious groups from immediate appellate review and thus expose them to the time, expense, and risk of a trial. Amici cited examples such as the NRA’s American Rifleman, the Sierra Club’s Sierra, the Knights of Columbus’ Columbia, the United Methodist Church’s Newscope, the Roman Catholic Diocese of Oakland’s The Catholic Voice, and the Southern Christian Leadership Conference’s SCLC Magazine.

The dissenting justice, Justice Don R. Willett, asked whether giving immediate appellate review to those who could pass a “primary business test” chilled free speech by denying access to the courts because of the expense of protracted litigation. He asked in his dissenting opinion whether “courts [should] focus on who does the publishing or on what and why and to whom it’s published?”

The lawsuit that raised the First Amendment and other issues is Services Employees International Union Local 5, et al. (Union) v. Professional Janitorial Service of Houston, Inc. (PJS). PJS filed suit against the Union for allegedly making libelous statements about the company on the Union’s website’s blog. PJS was a focus of the Union’s “Justice for Janitors” battle.

The Local 5 Union asked the Texas Supreme Court to reverse the decision by the lower appellate court that dismissed their appeal on the grounds it was premature and outside the scope of its legal jurisdiction. The Union filed a motion asking the trial court judge to grant a summary judgment on the defamation, business disparagement, and tortious interference claims against it.

As a general rule, litigants must wait until a trial court case becomes final before filing an appeal. The Texas legislature has created an exception that allows members of the electronic and print media, or a person whose communication appears in, or is published by the electronic or print media, to immediately appeal a trial court decision that involves free speech or free press rights. The question in this case is whether the union website publication involves a “member of the electronic media.”

Justice Willett’s dissent urges that the Texas Supreme Court should allow review to define “electronic or print media,” and to clarify who has the right to an immediate free-speech or free-press appeal. Willett asked whether “only ‘professional’ journalists’” and not lawyers, professors, activists, and others, have information that is “worth protecting with up-front judicial attention to safeguard the free, unchilled exchange of ideas?”  He wrote that “[t]hese vital questions, and many others, deserve 21st century attention.”

There is a split among the courts with regard to the legal tests to use in deciding who is entitled to an immediate appeal, and the statute that gives the right to an interlocutory appeal was enacted in 1993 before the explosion of online publishing. The Union petitioned the Court to take the case arguing “[w]e need a 21st century interpretation [of the statute].”

Justice Harvey Brown, writing for the intermediate appellate court, noted that “Whether an organization’s online presence qualifies it as a media defendant under [the interlocutory appeal statute] is a matter of first impression in this Court.” He also noted that the statute does not define the term “electronic media” or “member of the electronic media.”

The intermediate court agreed with the Union that a person or organization should not be deprived of an interlocutory appeal simply because he or she communicates online but stated it “would be an absurd reading of the statute” to permit everyone who communicates on the Internet to have the right to an intermediate appeal. Justice Brown opined that the right of interlocutory appeal depends on who speaks, not on how they speak.

The intermediate appellate court applied a “totality of the circumstances” test and concluded that “a person who communicates online qualifies as a ‘member of the electronic media’ when the person’s primary business is reporting the news and they are, as the statute expressly provides, ‘acting in such capacity.’’’

The Court found that the Union was not a “member of the electronic media” and noted that its website did not produce income or have advertising. It also noted that the Union’s communications were not substantially related to reporting the news to the public.

Justice Willett’s colorful dissent received quite a bit of favorable media attention by referencing Ferris Bueller. Although all of his comments about the movie character are not included here, he wrote:

“The modern Internet age moves far faster than the pre-digital grind from which Ferris Bueller played hooky almost thirty years ago. Life in 2014 moves blazingly fast, and nowhere faster than online, where an increasing number of Americans consume news and political information. Who qualifies as a member of the ‘electronic media’ under Texas law? Given the proliferation of Web and other digital publishing, it’s a vexing question. And a vital one, since members of the ‘electronic or print media’ can immediately appeal orders that burden their free-speech or free-press rights.”

The jurist continued that “many authors who write for the nation’s most visited and prominent blogs and websites do so as a sideline. They publish, but their ‘primary business’ is not publishing. The [friend of the court] bloggers and writers, for example, distribute information and opinions, but their principal business is law practice, university teaching, or policy analysis, not ‘professional’ journalism. Their online contributions are things they do on the side.”

Justice Willett opined “I doubt the Framers intended that First Amendment protections were meant solely for the institutional press and ‘professional’ journalists.” He wrote that while he did not believe that the Texas statute allowing immediate appeal “belong[s] to anyone with an Internet connection,” the higher court should decide the case to establish “clear rules, clearly defined and clearly applied … when free-speech and free-press rights are implicated.”

The motion for rehearing asking the Supreme Court of Texas to reconsider its decision is pending before the Court. The Court’s most recent action was to grant a motion for substitution of counsel for the friend of the court bloggers.

Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. Follow her on Twitter @LanaShadwick2.

This article has been updated to include additional information for our readers.


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